Hugo Black's legacy: Man of the century, or political apathy?
By Robert S. Sargent, Jr.
web posted July 22, 2002
The always-interesting columnist for the Village Voice, Nat
Hentoff, in his latest book, The Nat Hentoff Reader, nominates
Justice Hugo Black as "My Man of the Century" because, "The
one justice who passionately kept trying to persuade his
colleagues that the entire Bill of Rights be incorporated into state
laws was Hugo Black."
As we know, the Bill of Rights was deliberately left out of the
original Constitution. As Alexander Hamilton wrote in The
Federalist Papers (No. 84), "I...affirm that bills of rights...are not
only unnecessary...but would even be dangerous. They would
contain various exceptions to powers, which are not granted;
and on this very account, would afford colourable pretext to
claim more than were granted. For why declare that things shall
not be done which there is no power to do?"
When the Bill of Rights amended the Constitution in 1791,
Hamilton's explanation for excluding them was incorporated in
the Ninth Amendment: The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others
retained by the people. In other words, just because we have
told you (the federal government) a few rights you can't intrude
upon doesn't mean you can intrude upon any others. The people
through their state legislators shall decide what rights they retain,
not the federal government.
In 1868, in order to protect ex-slaves, the 14th Amendment did
apply certain rights that the states couldn't intrude upon: "Nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws." Somehow Hugo
Black, in his dissent in Adamson v. California (1947) found this
to mean that all the rights enumerated in the Bill of Rights applied
to the states: "My study of the historical events that culminated in
the Fourteenth Amendment...persuades me that one of the chief
objects that the provisions of the Amendment's first section were
intended to accomplish was to make the Bill of Rights applicable
to the states." One must ask, if this was one of the "chief objects,
" why didn't they put it in the text? (For a scholarly, devastating
refutation of this interpretation of "the original purpose," see
Raoul Berger's book on the 14th Amendment, "Government by
Judiciary.")
This concept of "Incorporation Theory" goes against the idea of
federalism envisioned in the Constitution. Now that Justice
Black's dissent is accepted jurisprudence, state laws can be
reviewed in federal court, which means that the Supreme Court
now decides what our rights are. The 9th Amendment in its
original sense is now irrelevant.
James Madison, in the Federalist No. 45, wrote: "The powers
reserved to the several states will extend to all the objects which
concern the lives, liberties and properties of the people," (those
concerns protected by the 9th Amendment). It is my belief that
when the people, through their state legislatures, decide these
"concerns," they are much more likely to be interested in the
political process than when a distant body of nine Justices usurps
these powers.
About the time the Supreme Court started reviewing state laws
for Bill of Rights conformity, participation in politics started
declining. The percentage of the voting age population who
bother to vote has been declining since the '60s (figures are from
the Federal Election Commission). In presidential elections the
figures are: 1960 - 63%; 1972 - 55%; 1984 - 54%; 1996 -
49%. The congressional elections are worse: 1962 - 47%; 1974
- 38%; 1986 - 36%; 1998 - 36%. I can't believe this is a
coincidence.
While applying the Bill of Rights to the states sounds positive, the
consequences, on balance, have been negative. It can be argued
that Hugo Black and his legacy are largely responsible for the
indifference towards politics today. "Rights" arouse passion in
people, and deciding those rights through their state legislatures
encourages participation in the political process. I believe that
when moral issues such as abortion, gay rights, women's rights
and so on are decided democratically, both sides of the issues
accept the results (vowing to work harder next time). When the
process is taken away from them, the people feel left out of the
process. This leads to passionate fringe groups often resorting to
violence as the only way to make their voice be heard, and
political apathy by the general populace.
Robert S. Sargent, Jr. can be reached at rssjr@citcom.net.
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